State v. AndersonState v. Anderson
Dated: October 14, 2009
DICKINSON, Presiding Judge.
INTRODUCTION
{¶1} In 1999, Kentonio Anderson pleaded guilty to five counts of aggravated robbery, and the trial court sentenced him to seventeen years in prison. In 2006, he attempted to appeal, but this Court concluded that the trial court’s sentencing entry was not a final order. Mr. Anderson moved for resentencing, and the trial court resentenced him in 2007. In September 2008, he moved to be resentenced again, arguing that his sentence was void under State v. Bezak, 114 Ohio St. 3d 94, 2007-Ohio-3250, and State v. Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197. He argued that, under
CRIMINAL RULE 32.1
{¶2}
{¶3} Although Mr. Anderson moved to withdraw his plea after he was resentenced in 2007, the Ohio Supreme Court has held that “[a] motion to withdraw a plea . . . made by a defendant who has been given a void sentence must be considered as a presentence motion under
POST-RELEASE CONTROL
{¶4} In 1996, the General Assembly “created major changes in the premise of felony sentencing in Ohio.” Hernandez v. Kelly, 108 Ohio St. 3d 395, 2006-Ohio-126, at ¶31. “As part of [its] goal of achieving ‘truth in sentencing,’ the new felony-sentencing law was intended to ensure that all persons with an interest in a sentencing decision would know precisely the sentence a defendant is to receive upon conviction for committing a felony. The goal is that when the prosecutor, the defendant, and victims leave the courtroom following a sentencing hearing, they know precisely the nature and duration of the restrictions that have been imposed by the trial court on the defendant’s personal liberty.” Id.
{¶5} At the time of Mr. Anderson’s offenses,
{¶6} In State v. Jordan, 104 Ohio St. 3d 21, 2004-Ohio-6085, the Supreme Court considered the consequence of a trial court’s failure to notify a defendant about post-release control under
{¶7} Summarizing, the Supreme Court wrote that “[t]he court’s duty to include a notice to the offender about postrelease control at the sentencing hearing is the same as any other statutorily mandated term of a sentence. And based on the reasoning in Beasley, a trial court’s
{¶8} In State v. Bezak, 114 Ohio St. 3d 94, 2007-Ohio-3250, the Supreme Court again considered a trial court’s failure to advise a defendant about post-release control at the sentencing hearing. Id. at ¶16. It concluded that “[its] decision in State v. Jordan controls.” Id. at ¶12. Noting that Mr. Bezak “was not informed about the imposition of postrelease control at his sentencing hearing,” it determined “the sentence imposed by the trial court is void.” Id. It held that, “[if] a trial court fails to notify an offender that he may be subject to postrelease control at a sentencing hearing, as required by [Section] 2929.19(B)(3), the sentence is void; the sentence must be vacated and the matter remanded to the trial court for resentencing.” Id. at ¶16.
{¶9} Recently, the Supreme Court “again confront[ed] the consequences of the trial court’s failure to . . . notify an offender about postrelease control at the time of sentencing . . . .” State v. Bloomer, 122 Ohio St. 3d 200, 2009-Ohio-2462, at ¶1. It noted that
{¶10} In this case, the trial court did not disregard the notification requirement under
{¶11} The trial court correctly told Mr. Anderson that, if he violated post-release control, he could be sent back to prison for up to half the duration of his original sentence. Because his sentence was seventeen years, the maximum was eight-and-a-half years. The court then mistakenly told Mr. Anderson that the maximum was five years. Although the court was incorrect about the maximum, the mistake does not make Mr. Anderson’s sentence void. Unlike the trial courts in Jordan, Bezak, and Bloomer, the trial court in this case did not ignore the notification requirements under
MANIFEST INJUSTICE
{¶12} As noted previously, a presentence motion to withdraw a guilty plea should be freely and liberally granted, but a post-sentence motion should only be granted if the defendant has met his burden of establishing the existence of manifest injustice. State v. Xie, 62 Ohio St. 3d 521, 527 (1992); State v. Smith, 49 Ohio St. 2d 261, paragraph one of the syllabus (1977). At the hearing on Mr. Anderson’s motion, the trial court found that he “wasn’t told that he would be placed on Post-Release Control at the time of the plea.” Noting that the Ohio Supreme Court has held “that you have to read him his rights or those rights both at the plea and at sentencing,” the court said that it was “going to grant the motion to withdraw his plea.” In its journal entry, it granted the motion without explanation.
{¶13} It is not clear from the hearing transcript or the journal entry whether the court applied the presentence standard or the correct post-sentence standard when it reviewed Mr. Anderson’s motion to withdraw his plea. The court’s journal entry, therefore, is vacated and this matter is remanded so that the trial court can determine whether he has met his burden of establishing the existence of manifest injustice. See State v. Boswell, 121 Ohio St. 3d 575, 2009-Ohio-1577, at ¶13 (“Because the trial court granted Boswell’s motion [to withdraw his guilty plea] without opinion . . . we remand to the trial court to consider the motion under the [proper] standard . . . .“). The State’s assignment of error is sustained.
CONCLUSION
{¶14} Because it is not clear whether the trial court reviewed Mr. Anderson’s motion to withdraw plea as a post-sentence motion, this Court is unable to determine whether the court
Judgment vacated, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to appellee.
CLAIR E. DICKINSON
FOR THE COURT
WHITMORE, J. CONCURS
BELFANCE, J. CONCURS, SAYING:
{¶15} I concur. While I believe it would be reasonable and logical to assume that the Supreme Court of Ohio would determine based on its precedent and prior reasoning, that
{¶16} In 1984, in State v. Beasley (1984), 14 Ohio St.3d 74, the Supreme Court made the pronouncement that sentences that disregard statutory requirements are void. Id. at 75. In doing so it declared that a trial court’s failure to impose a prison term when a mandatory prison term applied rendered the sentence void. Id. In 2004, the Supreme Court began its examination of void sentences in the context of post-release control sanctions. State v. Jordan, 104 Ohio St. 3d 21, 2004-Ohio-6085. The Court held that “[w]hen a trial court fails to notify an offender about postrelease control at the sentencing hearing but incorporates that notice into its journal entry imposing sentence, it fails to comply with the mandatory provisions of
{¶17} The Supreme Court reaffirmed its stance that failures in notifications concerning post-release control rendered a sentence void in State v. Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197, at syllabus. It stated that “[i]n cases in which a defendant is convicted of, or pleads guilty to, an offense for which postrelease control is required but not properly included in the sentence, the sentence is void, and the state is entitled to a new sentencing hearing to have postrelease control imposed on the defendant unless the defendant has completed his sentence.” Id.
{¶18} Since Simpkins, the Supreme Court has addressed the void/voidable issue on several occasions and has continued to hold that sentences that do not include proper post-release control notifications are void. See State v. Boswell, 121 Ohio St. 3d 575, 2009-Ohio-1577, at ¶10 (“It is undisputed that Boswell’s sentence is void. It failed to include mandatory postrelease control, violating
APPEARANCES:
SHERRI BEVAN WALSH, prosecuting attorney, and RICHARD S. KASAY, assistant prosecuting attorney, for appellant.
CHARLES R. QUINN, attorney at law, for appellee.